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Continued problems over Google Adwords
Interflora initiated litigation proceedings last year after M&S purchased its rival’s name as a Google AdWord, which meant that when an internet user typed ‘Interflora’ into the search engine an advert for M&S Flowers appeared.
According to the Advocate General of the European Court of Justice (ECJ), Niilo Jääskinen, Marks & Spencer’s (M&S) use of Google AdWords infringed florist network Interflora’s trademark. An ECJ ruling on the case will be made in a few months’ time, and if the decision is in favour of Interflora there could be huge ramifications for the whole of the online advertising sector.
The Advocate General considers that use of a rival trademark as a Google AdWord constitutes trade mark infringement where the consumer is unable to determine whether or not the advert is for the brand they originally searched for. Even though the ECJ ruled last year that Google was not liable for trademark infringement by selling AdWords to rival companies, the search engine firm could feel the impact of any decision made in favour of Interflora in other ways. Last year, the European Court of Justice found that Google didn’t infringe on other companies’ rights by allowing competitors to bid on trademarked keywords. The court, however, left it to individual countries to decide on the matter and possibly apply stricter rules. Both Google and the LVMH (Moët Hennessy Louis Vuitton) luxury-good company, two of the parties involved, have declared victory in the case.
The AdWord service is a major source of revenue for the California-based corporation Google. It is possible, with this opinion, that Google’s customers may well reconsider how extensively they want to use a competitor’s mark as an AdWord.
An introduction to the GoogleAdwords as trademarks is given in the Intellectual Property video of ‘Legal Aware’.
Commodity Controversy – yet again
Goldman Sachs owns Metro, JP Morgan owns the warehousing company Henry Bath, commodity trader Trafigura owns NEMS and Glencore owns Pacorini.As part of an investigation into strategically important metals, the Commons Science and Technology committee learned that four large metals traders also ran warehouses, raising fears they could gain an unfair advantage through access to sensitive information about the activities of rival traders. Therefore, The Office of Fair Trading is considering an investigation into whether the market for metals trading is anti-competitive after MPs raised concerns that many of the warehouses used in the industry were owned by big commodities traders. The OFT will apparently respond to the select committee shortly and will consider any complaints received on publication by the report.
Giving evidence at a science and technology hearing last week, Anthony Lipmann, managing director of the Lipmann Walton metals trader and former chairman of the Minor Metals Trade Association, provided that JP Morgan is one of four very large companies that own the very warehouses that people deliver metal into. They own a company called Henry Bath. Lipmann said, “They are, therefore, a ring-dealing member of the exchange and they also own the warehouse. That is restrictive.”
A spokesman for the London Metals Exchange provided, instead, that robust regulations in place concerning this issue, regulations are under constant review by the LME and their regulator the FSA to ensure the market operates “in a fair, transparent and orderly manner.”
In 1996, the situation was equally bad. five UK firms were among 30 companies to have been fined a total of 314.7m euros (£211.5m; $399.4m) for running a copper fittings cartel between 1988 and 2004. The cartel influenced prices for copper fittings used with tubes for plumbing, heating and sanitation. Tomkins was fined £3.6m, Delta £19m, IMI £32.5 and AFC £12.16m. However, the European Commission said at the time that IMI’s penalty In contrast, the Commission increased the fines for AFC, Delta, Aalberts of the Netherlands and France’s Legris for continuing to operate the cartel after its investigation had begun.
The Commission also said that it lifted the fine for AFC by a further 50% as punishment for providing misleading information. One firm, Mueller – which was originally fined £6.9m – eventually received full immunity as it was the first company to come forward with information about the cartel.
How cartels differ from perfect competition continues to interest both economists and commercial lawyers. The OFT publish information as follows:
“In the UK, anti-competitive behaviour is prohibited under Chapters I and II of the Competition Act 1998 and may be prohibited under Articles 81 and 82 of the EC Treaty. These laws prohibit anti-competitive agreements between businesses and the abuse of a dominant position by a business. Businesses that infringe competition law may face substantial financial penalties of up to ten per cent of their worldwide turnover.”
Cartels are a particularly damaging form of anti-competitive activity. Their purpose is to increase prices by removing or reducing competition and as a result they directly affect the purchasers of the goods or services, whether they are public or private businesses or individuals. Cartels also have a damaging effect on the wider economy as they remove the incentive for businesses to operate efficiently and to innovate. Detecting and taking enforcement action against the businesses involved in cartels is therefore one of our main enforcement priorities.”
http://www.oft.gov.uk/shared_oft/business_leaflets/ca98_mini_guides/oft435.pdf
Charlotte Harris on Question Time discussing types of injunction and parliamentary privilege
Reputation management is a topic discussed at the BPP Legal Awareness Society, in relation to “technology and the media”. It has been in the general news recently, as well as the specialist press. Legal tweeters have been discussing it in great detail, including the effect of international law (US SPEECH, US Communications Act and the European Convention of Human Rights) as well as domestic law on what can be legitimately reported. It has been a tough time for traditional professional journalists too, as well as the parties involved. The lawyers have worked very hard in avoiding becoming the news story, which is said to be ‘the first rule of journalism'; whether they have succeeded (with the antics of Carter Ruck LLP over Trafigura in the past, and Schillings over CTB and Glencore) is a different matter.
Question Time is a tough gig for anyone. Charlotte Harris, a reputation management partner from Mischon de Reya LLP, faced questions inevitably on many media issues which had surfaced during this week.
The questions are difficult, but Charlotte clearly represented the law as it currently stands. For some reason, the whole issue has raised a lot of emotions about the privacy legislation, and the relationship between the legislature, executive and judiciary; and, equally worryingly, the relationship between the general public and lawyers.
1. Did John Henning abuse parliamentary privilege?
Last Friday saw the publication of Lord Neuberger’s report on “Super Injunctions, Anonymised Injunctions and Open Justice”.
This Report arguably could not come at a more sensitive time as more and more celebrities are requesting injunctions, so the story goes, and court orders are being flouted on Twitter and by MPs hiding behind parliamentary privilege.
Bloggers and users of social networking sites, such as Twitter, are being seen as a problem that “add to the difficulties of enforcement” of court orders. Lord Neuberger said “modern technology is totally out of control… Anybody can put anything on it.” The Report goes on to consider the issue of parliamentary privilege and is somewhat critical of MPs who use parliamentary privilege to flout court orders however, the Report does not appear to recommend any change to the law on parliamentary privilege. Lord Neuberger said the law on parliamentary privilege is “astonishingly unclear” and asked whether it was a “good idea” for lawmakers to be “flouting a court order just because they disagree”. A vast majority of people have viewed that John Hemming MP did “flout” the law; parliamentary privilege is said to be defeated by malice, so it is imperative that John Hemming did not act with malice in making his brief remark in the lower House. There is a sentiment which many people believe that John Hemming MP did flout the law, and Charlotte Harris did make this opinion, in keeping with the heads of the Judiciary, very clear.
2. Are superinjunctions are a ‘secret justice’?
David Cameron has accused judges of making privacy law without Parliamentary authority. The aforementioned judicial report on media gagging orders conceded there has been an increase in U.K. courts granting anonymity orders blocking the media from naming people involved in lawsuits over news stories. According Lord Chief Justice Igor Judge at a recent press conference , the English law on privacy comes predominantly from the Human Rights Act [1998] which Parliament passed.
A superinjunction is an injunction which nobody is known about, such as Trafigura. Charlotte Harris has never been involved in a superinjunction. The central point is that superinjunctions are extremely uncommon, and Charlotte Harris made this central point clearly. Harris is completely correct to distinguish between normal injunctions, anonymised injunctions and superinjunctions. Senior U.K. judges have dismissed criticism over media restrictions, saying only two so-called super-injunctions were granted since January 2010, and neither are in force at the moment.
Interesting links: Schillings becoming the story
Injunction publicity backfires on celebrity law firm : http://www.guardian.co.uk/law/2011/may/24/injunction-publicity-backfires-law-firm
Go here
Trafigura and parliament
Trafigura gag attempt unites house in protest : http://www.guardian.co.uk/media/2009/oct/13/trafigura-carter-ruck-gag
Go here
Timetable for BPP Legal Awareness Society, 2 Mary Axe (Semesters 2 and 3, 2011/2)
For convenience, details of the MBA semesters are also provided below.
The aim of this Society is to further an interest in how the commercial law and business worlds interact. Therefore, the Society should be of interest to all business, law, finance and marketing students.
Meetings of the BPP Legal Awareness Society will take place from 5.00 – 5.50pm in room G2 of the BPP Business School, 2 St Mary Axe, The City.
Please note that they will finish punctually to end before the evening lectures of the MBA course.
Anybody within BPP (from any of the sites) is allowed to attend. People from outside BPP may attend with prior permission (which should be sought via legalaware@gmail.com).
Each meeting will have exactly the same format; a quick presentation including a guest internal/external speaker, followed by group discussion.
Please feel free to contact us at legalaware@gmail.com over any questions.
22 May 2011
The 12 steps of alcohol recovery
I personally don’t do the 12 steps programme for alcohol recovery, as they practise thoroughly in the Alcoholics Anonymous.
However, all I would say is: do whatever works best for you in recovery. In my recovery, I share some of the beliefs. In other words, you are genuinely powerless over the fact you cannot individually cope with alcohol. Many ‘normal’ people can cope – you are not one of them, if you are alcoholic. I have now been in recovery now for 45 months, and I am very open about it. I attend my recovery meeting mostly everu Tuesday in North London.
You cannot do it alone, but in a sense only you can totally cure yourself – this means a life-long programme of recovery. You have to let go, confront the issues, and live life in recovery – but it is an exacting and worthwhile process, and one which I continue to enjoy.
